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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Day v Womble Bond Dickinson (UK) LLP (Rev 1) [2020] EWCA Civ 447 (26 March 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/447.html Cite as: [2020] PNLR 19, [2020] EWCA Civ 447 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HER HONOUR JUDGE DEBORAH TAYLOR
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE FLOYD
and
LORD JUSTICE COULSON
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DAY |
Appellant |
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- and – |
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Respondent |
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Mr Ben Hubble QC (instructed by CMS Cameron Mckenna Nabarro Olswang LLP) for the Respondent
Hearing date: 4th March 2020
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Crown Copyright ©
"Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am, Thursday 26th March 2020."
LORD JUSTICE COULSON :
1. INTRODUCTION
2. THE FACTUAL BACKGROUND
a) As to the question of the matter being tried summarily, the Lord Chief Justice said:
"40. As to the relevance of the position of Natural England that it had been prepared to have the matter tried summarily, we were told that that was a decision taken by a junior solicitor. Although Natural England could not have resiled from that decision, if the appellant had accepted summary jurisdiction, once he had decided to elect to take the proceedings to the Crown Court, the judge was plainly bound to approach the case on the evidence as it appeared before him and not be influenced in any way by an earlier decision of Natural England."
b) As to the amount of the fine, the Lord Chief Justice said:
"46. The sentence imposed by the judge was imposed before the decision of this court in R v Sellafield which gave guidance as to the approach to fines to be imposed on companies of very significant size. Applying that same approach to individuals possessing the scale of wealth of the appellant, a fine significantly greater than that imposed by the judge would have been amply justified for his grossly negligent conduct in pursuit of commercial gain, particularly when so seriously aggravated by his conduct in obstructing justice. A fine in seven figures should not therefore be regarded as inappropriate in cases where such a fine was necessary (1) to bring home to a man of enormous wealth the seriousness of his criminality in cases such as this where there was gross negligence in pursuit of commercial gain, (2) to protect the public interest in SSSIs and (3) to deter others. In the case of deliberate conduct in similar circumstances, a fine in relation to a man of similar wealth should be significantly greater, as that would be necessary to reflect the greater culpability. The fine of £450,000 imposed on this appellant cannot therefore be viewed as disproportionate."
"20 By reason of the matters aforesaid Mr Day has suffered loss and damage namely:
a) The loss of chance of an acquittal either on grounds of abuse of process or by reason of a trial at which his evidence was heard. He contends that it is substantially more likely than not that he would have been acquitted if properly defended;
b) As a result of the negligence of the Defendant, he has incurred substantial additional legal costs and expenses;
c) In any event he was fined and incurred costs which were substantially more than would have been incurred in the Magistrates Court. The maximum fine which the Magistrates Court could have imposed for the two offences of which he was convicted would have been £40,000. In fact fines totalling £20,000 would have been the maximum likely with equivalent costs."
3. THE JUDGMENT
"44. I have concluded that the Statement of Case does not disclose a claim which the court can entertain, as it is an abuse of process, and must fail as a matter of law by reason of illegality. It is clear from Gray and Patel v Mirza, that the justification for the narrow rule when considering illegality in the context of bringing civil proceedings where there is a subsisting criminal conviction is the inconsistency of the law causing the loss, and the law ordering compensation. The points raised by Mr Stewart QC do not establish any competing policy justifying derogation from the narrow rule which applies to cases such as this where the claim is for the fine imposed and the costs ordered. The passages of Lord Toulson's judgment in Patel v Mirza at [101] and [107] do not support the contention that this area of law is unsettled. I do not consider that this is a case which falls within the class of cases which needs to be fully argued in order that the law may develop in an uncertain area of law: see Barrett v Enfield London Borough Council [2001] 2 AC 550 at 557 per Lord Brown-Wilkinson. This case falls within Lord Hoffmann's test in Gray, supported by Lord Toulson at [99] of Patel v Mirza. The punishment was lawfully imposed by HHJ Hughes QC in consequence of Mr Day's unlawful act to which he pleaded Guilty. The unlawful act preceded any intervention by WBD, or indeed Mr Stainer. There was and is no dispute that works were carried out which were not notified to NE and for which permission was not given. In addition, the Basis of Plea, which HHJ Hughes QC treated as, and Mr Stewart QC did not suggest was anything other than Mr Day's position, accepted a measure of responsibility. HHJ Hughes QC found he had a very considerable degree of responsibility and the sentence was imposed accordingly.
Abusive collateral attack on a subsisting conviction
45. Further, the claim is an abusive collateral attack on a subsisting conviction. Mr Stewart QC's submissions clearly highlight that the aim of the proceedings is to show that Mr Day would have acted differently, and, on one scenario HHJ Hughes QC, and the Court of Appeal (if there had been an appeal) would have come to different conclusions, had WBD acted as Mr Day contends they should have done. The underlying requirement to succeed in this claim is proving one or all of a number of outcomes, all of which are inconsistent with the current conviction and sentence. Those include that the proceedings would have been held to be an abuse, and therefore stayed, or that Mr Day would have pleaded Not Guilty in the Magistrates Court, with a potential acquittal at trial. Or even if a conviction at trial, or on a plea in the Magistrates Court, that he would have been given a lower sentence and incurred lower costs. Those scenarios would be wholly at odds with the existing sentence and costs order imposed by HHJ Hughes QC and upheld in the Court of Appeal, and in the circumstances the claim is likely to bring the administration of justice into disrepute.
46. Mr Stewart QC's submissions were predicated on the basis that WBD were negligent and therefore there must be a remedy. At this stage I am not concerned with deciding the merits of disputed issues of fact or negligence. But as a matter of policy, as Lord Hoffmann said in Hall v Simon, the remedy for those who may have been prejudiced by incompetent representation is to appeal through the criminal courts or to the Criminal Cases Review Commission to overturn the conviction. Once the conviction has been overturned, the claim is no longer an abuse. Mr Day was represented by Leading and Junior counsel at all stages of the original proceedings, He has had the opportunity of appeal with different solicitors and Leading and Junior counsel. None of the issues he now raises regarding abuse of process or the negligence of WBD were apparently before the Court of Appeal. I reject the submission that a civil court is better placed to examine a case where allegations of this kind are made. The criminal appeal process has time, where appropriate, and the expertise necessary for consideration of what are criminal procedural issues which would be required to review a case which has gone through the Crown court and Court of Appeal. It is not, as was suggested, a question of protecting the amour propre of the courts that led the court in Hall v Simons to endorse the Hunter principle.
47.On this basis, unless Mr Day's case is within a category of exceptions to the general rule set out in Hall v Simons it must also be struck out as a clear abuse.
48. In my judgment this is not an exceptional case, and very different to Walpole. Here there is no error of law by the Court which should have been rectified on appeal. As Ralph Gibson LJ made clear, there is a public interest in rectifying errors by the Court, and the prevention of an attempt to rectify such an error may itself bring the administration of justice into disrepute. Not all potential points of law are the same, or create circumstances where such an approach can properly be taken. Mr Stewart QC argues that this is a clear case of a promise not to prosecute and likely to be successful. Even if the basis pleaded were accepted, the bar for success in an application of this kind in criminal proceedings is high, and the circumstances and the ability of Mr Stainer to make a binding promise, even if made, is contested by the Defence. It is not, like Walpole a case which demands an exceptional course.
49. More similar to this case is Smith v Linskills (a firm) 1 WLR 763 where at 770 A - D Sir Thomas Bingham MR set out the reasons for finding that Mr Smith had had a full opportunity to contest the charge against him. Mr Stewart QC submits that whilst Mr Day may have attended Court, been represented by Leading and Junior counsel throughout, had witnesses called on his behalf, and appealed with new Counsel and solicitors, he did so in a state of ignorance of the process and about how badly he had been advised and treated by WBD. Nonetheless I find, irrespective of the merits of his case, as Bingham MR said in Smith v Linskills:
"Even if it be true that valid criticism can be made of the conduct of his defence, it seems to us quite impossible to hold that Mr Smith lacked a full opportunity to contest the charge".
50. In conclusion, the applications that the Statement of Case be struck out pursuant to CPR 3.4(2) and that reverse summary judgment be given against the claim, pursuant to CPR 24.2 success."
4.THE APPEAL
i) The judge was wrong to find that the claim must fail, as a matter of law, by reason of the doctrine of illegality with the consequence that the claim should be struck out.
ii) The judge was wrong to find that the claim is an abusive collateral attack on an existing conviction with the consequence that the whole claim should be struck out; alternatively
iii) The judge was wrong to find that the claims in relation to choice of venue and abuse of process were an abusive collateral attack and should have permitted the same to proceed to a trial.
"So far as Ground iii) is concerned, it is arguable that a claim (1) that an abuse of process argument was available to the claimant which the solicitors negligently failed to advance and/or (2) that the solicitors gave negligent advice as to venue as a result of which the claimant was exposed to a substantially greater sentence than would have been imposed in a Magistrates Court, does not involve or does not necessarily involve any assertion that the claimant was wrongly convicted. Those claims may face formidable difficulties on the facts, but whether they are available in principle is an issue which is appropriate for consideration by the Court of Appeal."
"20a. the loss of chance of Natural England not proceeding with the prosecution given the assertion of an abuse of process and/or the loss of the chance of the prosecution being stayed on the basis of the application of the doctrine.an acquittal either on grounds of abuse of process or by reason of a trial at which his evidence was heard. He contends that it is substantially more likely than not that either Natural England would not have proceeded with the prosecution or it would have been stayedhe would have been acquitted if properly defended;
The allegation at paragraph 20c) in respect of a trial in the Magistrates Court (see paragraph 13 above) remains unchanged.
a) A claim for damages equivalent to the fine of £450,000. Mr Stewart submitted that this claim could be advanced on the primary basis that, if the abuse of process argument had been successful, there would have been no fine at all. Alternatively, the claim was for the amount of the fine, less £40,000 to reflect the maximum fine that could have been imposed by the Magistrates, had the matter remained there (as the appellant said he would have done, if the correct advice as to venue had been given).
b) A claim for damages equivalent to the £457,317 contribution that the appellant was ordered to make to the prosecution costs of Natural England. The argument is that, if the abuse of process argument had been successful, there would have been no such order for costs. Alternatively, if the venue argument had been successful, then it is said that the costs would have been a fraction of the actual sum ordered.
c) A claim for damages equivalent to the appellant's own costs. Mr Stewart accepted that the appellant would have always incurred some costs in the criminal proceedings but he said that this was a claim for the additional costs that the appellant incurred as a result of the negligent advice in respect of the abuse of process argument and/or venue. It was said that this would be the vast bulk of the costs incurred, although the claim for additional costs is not pleaded with any precision and no specific figure is identified.
5. THE APPLICABLE PRINCIPLES OF LAW
5.1 The General Rule
5.2 Doctrine of Illegality
"29. It must follow from Corr's case that the mere fact that the killing was Mr Gray's own voluntary and deliberate act is not in itself a reason for excluding the defendants' liability. Nor do the appellants say that it is. Their principal argument invokes a special rule of public policy. In its wider form, it is that you cannot recover compensation for loss which you have suffered in consequence of your own criminal act. In its narrower and more specific form, it is that you cannot recover for damage which flows from loss of liberty, a fine or other punishment lawfully imposed upon you in consequence of your own unlawful act. In such a case it is the law which, as a matter of penal policy, causes the damage and it would be inconsistent for the law to require you to be compensated for that damage...
32. The particular rule for which the appellants contend may, as I said, be stated in a wider or a narrow form. The wider and simpler version is that which was applied by Flaux J: you cannot recover for damage which is the consequence of your own criminal act. In its narrower form, it is that you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act. I make this distinction between the wider and narrower version of the rule because there is a particular justification for the narrower rule which does not necessarily apply to the wider version.
33. I shall deal first with the narrower version, which was stated in general terms by Denning J in Askey v Golden Wine Co Ltd [1948] 2 All ER 35, 38:
"It is, I think, a principle of our law that the punishment inflicted by a criminal court is personal to the offender, and that the civil courts will not entertain an action by the offender to recover an indemnity against the consequences of that punishment.…"
"29. Lord Hoffmann observed, at paras 30-32, that the maxim ex turpi causa expresses not so much a principle but a policy based on a group of reasons, which vary in different situations. The courts had therefore evolved varying rules to deal with different situations. Because questions of fairness and policy were different in different cases and led to different rules, one could not simply extrapolate rules applicable to one situation and apply them to another. It had to be assumed that the sentence was what the criminal court regarded as appropriate to reflect Mr Gray's personal responsibility for the crime he had committed. It was therefore right to apply the rule that he could not recover damages for the consequences of the sentence, reflecting an underlying policy based on the inconsistency of requiring someone to be compensated for a sentence imposed because of his personal responsibility for a criminal act. It was also to right to apply a wider rule that you cannot recover damage which is the consequence of your own criminal act, reflecting the idea that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct."
He went on to deal with public policy issues in this way:
"101. …I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without a) considering the underlying purpose of the prohibition which has been transgressed, b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law...
109. The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted."
"120. The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather than by the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate."
"87. Nevertheless, in view of the actual contractual and unjust enrichment issue in Patel, considerable caution must be taken, in the context of the rules of binding precedent, in determining whether there are any other cases in other areas of the law which the Supreme Court in Patel held by necessary implication to be overruled or such that they should no longer be followed.
88. Lord Neuberger, for example, expressed his conclusion explicitly by reference to contract cases when he said (at [174]):
"I have come to the conclusion that the approach suggested by Lord Toulson JSC in para 101 above provides as reliable and helpful guidance as it is possible to give in this difficult field. When faced with a claim based on a contract which involves illegal activity (whether or not the illegal activity has been wholly, partly or not at all undertaken), the court should, when deciding how to take into account the impact of the illegality on the claim, bear in mind the need for integrity and consistency in the justice system, and in particular (a) the policy behind the illegality, (b) any other public policy issues, and (c) the need for proportionality."
89. Again, Lord Toulson's discussion of proportionality was in the context of contract claims: see [107]. It is impossible to discern in the majority judgments in Patel any suggestion that Clunis or Gray were wrongly decided or to discern that they cannot stand with the reasoning in Patel. As we conclude above, Clunis was approved in Gray. Gray was referred to in the judgments of Lord Toulson ([28]-[32]), Lord Kerr ([129]) and Lord Neuberger ([153] and [155]) but in each case with approval of the way the matter had been approached by Lord Hoffmann in Gray in identifying the considerations underlying and justifying the rule of public policy. There was no suggestion of any kind that either the approach of Lords Hoffmann, Rodger and Scott or the decision in Gray was incorrect.
90. Furthermore, as is set out above, it is clear that the members of the appellate committee in Gray had considered issues which might undermine the application of the rule of public policy applicable in situations such as that in Gray, Clunis and the present case. They considered the situation where the mental illness of a claimant in tort proceedings against a health authority meant that, despite the conviction for manslaughter which predicates that the claimant committed the offence with intent to kill or to cause grievous bodily harm, they bore no or insignificant responsibility for the killing. As stated above, Lords Hoffmann, Roger and Scott were of the view that the claim against the health authority should, nevertheless, be barred on grounds of public policy.
5.3 Abuse of Process
"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
The proper method of attacking the decision by Bridge J in the murder trial that Hunter was not assaulted by the police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do."
"It was common ground that, so far as counsel had been able to discover, this point [namely the point which was not taken by way of case stated] has not before been considered in any reported case in this country. It seems to me to be clear beyond question that such a contention may constitute an exception. Let it be supposed that the plaintiff, having instructed his solicitors to pursue an appeal against the decision of the Crown Court, is deprived of the right of appeal by the defendants' breach of duty. Let it be supposed further that his claim shows that an obvious error of law was made by the Crown Court which, on appeal by case stated, must have resulted in the conviction being set aside. I can see no reason why the court should refuse to entertain such proceedings, and I can see no arguable basis for regarding such proceedings, by reason only of the collateral attack upon the decision of the Crown Court, as an abuse of process. It would, to the contrary, be an abandonment of the duty and of the function of the court to refuse to decide the issues in such proceedings."
"In his statement of principle already quoted, Lord Diplock referred to the need for the intending plaintiff to have had a full opportunity of contesting the decision against him in the first court. This was an echo of the judgment of Goff L.J. in McIlkenny's case [1980] Q.B. 283, 330H. In this case, Mr. Nicol argued, Mr. Smith had not enjoyed a full opportunity to contest the decision in the Crown Court, because the negligence of the defendant had prevented him deploying the full case which he would wish to have deployed.
This argument is, in our judgment, founded on a misunderstanding of what Lord Diplock meant. It is plain from his speech (see [1982] AC 529, 542H and the authority relied on) that Lord Diplock was giving his ruling with reference to both civil and criminal cases. It is evident in civil cases particularly that a party may lack any opportunity to resist a hostile claim, as for example where judgment is entered against him on the ground of procedural default, or may lack a full opportunity, as when summary judgment is given against him. We understand Lord Diplock to have been intending to preserve a party's right to make a collateral attack on a decision made against him in such circumstances. We cannot think that Lord Diplock would have regarded Mr. Smith as lacking a full opportunity of contesting the Crown Court decision against him when he had had the benefit of a solicitor and counsel throughout the proceedings, had pleaded not guilty, had attended every day of the trial, had been able to give instructions to counsel on the cross-examination of prosecution witnesses, had given evidence himself, had called witnesses, had sought to establish an alibi, had had the benefit of submissions made to the jury on his behalf, had pursued an application for leave to appeal against his conviction, had settled grounds of appeal drawing attention to some at least of his complaints about the manner in which his case had been conducted by his solicitor and had renewed his application for leave to appeal to the full court on the initial refusal of leave. Even if it be true that valid criticism can be made of the conduct of his defence, it seems to us quite impossible to hold that Mr. Smith lacked a full opportunity to contest the charge. Were this the correct meaning of the rule, then the rule itself would be virtually meaningless, since it is hard to imagine a case in which a convicted defendant could not find some plausible ground upon which to criticize the preparation of the defence by his solicitor. We fully appreciate the great difficulty which faces any convicted defendant seeking to challenge his conviction on appeal on the grounds that his defence had been negligently conducted; this does not, however, lead to the conclusion that such a defendant lacked a full opportunity to contest the charge against him."
"We cannot of course shut our eyes to the possibility that a criminal defendant may be wrongly convicted, perhaps because his defence was ineptly prepared or conducted. When that occurs, it represents an obvious and serious injustice. There are two possible solutions. One is to relax the present restraint on seeking to establish that injustice by civil action. The other is to ensure that, in appropriate cases, the conviction itself can be reviewed. It seems to us clear that it is this second solution which has, over the past century, been favoured: by giving a criminal defendant a right of appeal; by providing a relatively low standard for the admission of fresh evidence on appeal; by empowering the appellate court to order a new trial; by giving the Home Secretary power to refer a case back to the Court of Appeal; and by proposals to establish a new review body.
"It follows that, in the ordinary case, an action claiming that an advocate has been negligent in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands. Only if the conviction has been set aside will such an action be normally maintainable."
5.4 Inconsistency Principle
"36. Clunis's case was followed by the Court of Appeal in Worrall v British Railways Board [1999] CA Transcript No 684 in which the plaintiff alleged that an injury which he has suffered as a result of his employer's negligence had changed his personality. As a result, he had on two occasions committed sexual assaults on prostitutes, for which offences he had been sentenced to imprisonment for six years. He claimed loss of earnings while in prison and thereafter. The Court of Appeal struck out this claim. Mummery LJ said:
'It would be inconsistent with his criminal conviction to attribute to the negligent defendant in this action any legal responsibility for the financial consequences of crimes which he has been found guilty of having deliberately committed'.
37. The reasoning of Mummery LJ reflects the narrower version of the rule. The inconsistency is between the criminal law, which authorizes the damage suffered by the plaintiff in the form of loss of liberty because of his own personal responsibility for the crimes he committed, and the claim that the civil law should require someone else to compensate him for that loss of liberty…"
"99. Looking behind the maxims, there are two broad discernible policy reasons for the common law doctrine of illegality as a defence to a civil claim. One is that a person should not be allowed to profit from his own wrongdoing. The other, linked, consideration is that the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand."
5.5 Summary
6. THE ABUSE OF PROCESS ISSUE
7. THE VENUE ISSUE
8. CONCLUSIONS
LORD JUSTICE FLOYD:
LORD JUSTICE McCOMBE
Note 1 In a similar commercial context, the Court of Appeal adopted the same approach in Stoffel & Co v Grondona [2018] EWCA Civ 2031, where a claim for professional negligence in respect of conveyancing was upheld, despite the fact that the underlying transaction was tainted by fraud. [Back] Note 2 Mr Stewart made much of the fact that the Birmingham Six, who were the claimants inHunter, were of course subsequently cleared of murder. In my view, that has no bearing on the principles set out in Lord Diplock’s speech, which remain good law. [Back]